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Appeal No. KAR-194 of 1983, decided on 24th October, 1983.

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-

--S. Os. 12(1)(3) & 15 (3)(e)-Mere absence from duty exceeding 10 days without mens rea or appropriate state of mind-Does not constitute misconduct-Workman remaining absent for 123 days at intervals within six months period due to frequent sickness Retired on plea of extreme failing health and loosing capacity to work upto required standard of establishment-Such absence, in circumstances, held, did not constitute absence and contention of having been served with show-cause notice, held, not tenable Retirement after payment of notice pay, in circumstances, held, termination simplicitor for sufficient cause and not exceptionable. Messrs Rice Export Corporation Ltd. v. Ghulam Abbas and Ghulam Abbas v. Rice Export Corporation of Pakistan Ltd. 1982 P L C 166 ; Pakistan Cable Employees' Union Labour Welfare Centre and another v. Sind Labour Appellate Tribunl, Karachi and another 1981 P L C 589 ref.

---Mala fide-Termination of service challenged on plea of mala fide-No specific allegation as to mala fide supported by some prima facie proof justifying calling upon employer to rebut same Plea, in circumstances, held, not tenable.

The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others and Secretary, Department of Education Government of Punjab v. M. R. Roosy, Ex-Principal, Government College, Sargodha and others P L 0 1974 S C 151 rel.

Date of hearing : 3rd August, 1983.

This appeal is directed against the order, dated 29th May, 1983 by the 1lnd Labour Court, Karachi, ordering reinstatement of the respondent with full back benefit's.

2. The facts briefly stated are that the respondent was a permanent workman employed as a Dish Washer with the appellant establishment. He remained absent on account of his frequent and prolonged sickness for 123 days at intervals with effect from 14th January, 1982 to 9th July, 1982. On 27th September, 1982, vide Order, Annexure 'A', he was retired from service with effect from 1st October, 1982, on account of his extreme failing health. He served a grievance notice on the appellant establishment, dated 16th October, 1982, for redress of his grievance. The appellant, vide letter, dated 18th October, 1982, Annexure ' 8' refused to redress his grievance replying that he vas retired from service on account of extreme faling health, having no capacity to perform duties to the required standard. He was also intimated about the details of such absence- on account of sickness. He filed a grievance Petition- under section 25-A, 1. R. O., before the learned Labour Court who, vide the impugned order, dated 29th June, 1983, ordered his reinstatement with full back benefits. Aggrieved by the order, the appellant has filed this appeal.

3. The case of the respondent in effect is that he having remained absent for more than 10 days without leave should have been served with a show-cause notice and an enquiry held against him for the alleged misconduct which course having not been adopted by the appellant and the action taken being mala fide, should not be sustained in law. The case of the appellant on the other hand is that the termination of service of the respondent was on account of his extreme failing health, having lost capacity to serve upto the required of standard of the establishment of the appellant and, therefore, was not a misconduct but a termination simplicitor, and his services could be legally terminated within the meaning of Standing Order 12 (i) (3) of the Standing Orders Ordinance, 1968. The case of the appellant further is that there are no allegations even to the effect that the order of the termination against the respondent was passed on account of any trade union activities on his part or for any other reason and, therefore, mala fides cannot be attributed to the appellant for the action taken against the respondent. .

4. I have heard the learned Advocate for the appellant, Mr. Abdul Hafeez and the learned representative for the respondent, Mr. Saleem Raza at considerable length and have also persued the evidence recorded by the learned Labour Court of the respondent, Ghulam Hyder himself and that of Muhammad Ibrahim, the Vice-President Administration of the appellant establishment as well as the documentary evidence that has been mate sable on the record.

5. The contentions raised on behalf of the appellant by his learned Advocate, Mr. Abdul Hafeez is three-fold; firstly, that no misconduct was committed and, therefore, the procedure prescribed for serving the show-cause notice and holding o1 enquiry was not called for in the cir cumstance' of the case secondly, that the order of retirement of the respondent, dated 27th September, 1982, was a termination simplicitor within the meaning of Standing Order 12 (t) (3) of the Standing Orders Ordinance, 1968, and no exception could legally be taken to such an order ; and thirdly, since there are no specific allegations of mala faded against the appellant for having passed such an order, no mala fides can be attributed to the appellant for the action taken.

6. As regards the first contention, it is disputed on behalf of the appellant that the action taken against the respondent was on account of his absence from duty for more than 10 days. On the contrary, it has been asserted that the action taken was on account of extreme failing health of the respondent who has lost his capacity to work upto the required standard of the establishment of the appellant. In any case, for the purposes of sub-clause (c) of clause (3) of Standing Order 15, mere absence without leave for a period exceeding 10 days simplicitor without mens rev or appropriate state of mind, cannot be considered to be misconduct entailing the punishment provided in clause (4) of the said Standing Order which includes dismissal. A complete and elaborate answer to the plea to the effect that such absence for more than ten days would amount to misconduct, raised on behalf of the respondent is available in the decision of this Tribunal in the case of Messrs Rice Export Corporation Ltd. v. Ghulam Abbas and Ghulam Abbas v. Rice Export Corporation of Pakistan Ltd. (1). In the facts and circumstances of the instant case, no mens rev could be attributed to the case of the respondent for remaining absent as it was clearly due to his sickness and he cannot be considered to have committed misconduct within the mean ing of Standing Order 15 (i) (3) (c) (iv) of the Standing Orders Ordinance, 1968. Accordingly, there was no question of serving a show-cause notice and holding of an enquiry against the respondent within the meaning of Standing Order 15 (iv) of the Standing Orders Ordinance, 1968, in the circumstances of the present case.

7. So far the second contention raised on behalf of the appellant is concerned, the order of retirement, dated 27th September, 1982, as well as the reply to the grievance notice, dated 18th October, 1982, clearly disclose that the respondent was retired from service on account of his extreme failing health, whereby he had lost the capacity to work upto the required standard of the establishment of the appellant, and his utility to the appellant had been diminished to considerable limit. The reply to the grievance notice, dated 18th October, 1982, discloses the details of the absence of the respondent on account of sickness which would come to 123 days by intervals within a short period from 14th January, 1982 to 9th July, 1982, immediately before his retirement with effect from 1st October, 1982. The details of absence of the respondent on account of sickness as disclosed in reply, dated 18th October, 1982, have not been disputed by the respondent anywhere either in his pleadings or in his evidence. What I further find froth the record that he was directed by letter, dated 22nd August, 1982 to appear for medical examination before Dr. Fazal Ahmed Ali at Civil Hospital, Karachi and a copy of such letter is accompanied by a certificate of the posting on the address of the respondent but it appears from the material available on the record that the respondent avoided on the plea that he had not received the letter at all. In any case, in view of the evidence that is available on the record, there is no doubt that the respondent appears to have lost the capacity to work, on account of his frequent and prolonged sickness and that hi utility has considerably been diminished to the management also for the reason that they could not afford to keep his post vacant for such a ton time. There is no dispute that the notice pay of one month was paid t the respondent within the meaning of Standing Order 12 (i). Accordingly, the order of retirement passed in the case of the respondent was termination simplicitor within the meaning of Standing Order 22 (i) (3) as explicitly disclosed the reasons for the action, taken. I also find that the action taken was with sufficient cause. Reliance in that respect has also, been placed on the D. B. decision of the Karachi High Court in the case V Pakistan Cable Employees Union Labour Welfare Centre and another v. Sind Labour Appellate Tribunal, Karachi and another (1981 P L C 589) which authority on ail fours is applicable to the facts and circumstances of the instant case.

8. As regards the third contention. I find no allegations of mala fides on account of either trade union activities or for any other reason against the appellant for having taken the alleged action. Even the circum stances of the case as discussed by me above would not call for any motives to be attributed to the appellant for having taken the alleged action. There are, no specific instances male fides alleged against the appellant in order to establish the case of mala fides. There should be at least some specific allegations against the appellant as to male fides and they shout be supported by some prima facie proof to justify calling upon the appellant to rebut the same. In the instance case, there is not an iota of evidence to that effect or even the allegations to establish mala fides on the part of the appellant for the action taken against the respondent. Reliance in that respect has also been placed on the authority of the Supreme Court in the case of The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmed Khan and others, and the Secretary, Department of Education Government of Punjab v. M. R Roosy, Ex-Principal, Government College, Sargodha and others (P L D 1974 S C, 151).

9. For the aforesaid reasons, I set aside the impugned order passed by the learned Labour Court and allow the appeal.

A. Z. Appeal accepted.

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